Citation NR: 9629978
Decision Date: 10/25/96 Archive Date: 11/08/96
DOCKET NO. 91-49 470 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to service connection for a psychiatric
disability.
REPRESENTATION
Appellant represented by: A. P. Marra, Attorney-at-Law
WITNESSES AT HEARING ON APPEAL
Appellant, [redacted], [redacted], [redacted], and [redacted]
ATTORNEY FOR THE BOARD
Amy Padoll, Associate Counsel
INTRODUCTION
The veteran had active military service from August 31, 1961
to October 27, 1961.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of a September 1991 RO decision. In
October 1992, the Board denied entitlement to service
connection for a nervous disorder and for a low back
disorder. The veteran appealed to the United States Court of
Veterans Appeals (Court). In November 1993, the Court
granted a joint motion for remand. Included in the joint
motion for remand was the stipulation that the veteran wished
to withdraw his appeal of the denial of service connection
for a low back disorder. In April 1994, the Board remanded
the issue of entitlement to service connection for a nervous
disorder to the regional office (RO) in order to obtain
medical records pertaining to the veteran’s periods of
hospitalization from 1966 to 1972. As the issue of
entitlement to service connection for a nervous disorder
continued to be denied by the RO, the claim was returned to
the Board for further appellate consideration.
REMAND
After a review of the file the Board of Veterans’ Appeals
(Board) is of the opinion that additional development is
necessary in order to render a determination in this matter.
The report of the medical examination conducted in
conjunction with the veteran's entrance into active service,
dated in 1961, does not indicate the presence of a
psychiatric disability. However, on a report of medical
history prepared by him at that time, he indicated in the
affirmative as to whether he had or had ever had frequent
trouble sleeping, depression or excessive worry, and “nervous
trouble” of any sort. Under the provisions of 38 C.F.R. §
3.304(b)(1), "[h]istory of preservice existence of conditions
recorded at the time of examination does not constitute a
notation of such conditions but will be considered together
with all other material evidence in determinations as to
inception." The United States Court of Veterans Appeals,
when considering a similar factual circumstance, held that
"the record is insufficient to permit effective...review to
determine whether there was clear and unmistakable evidence
that the veteran entered service with preexisting asthma...."
Crowe v. Brown, 7 Vet.App. 238 (1995).
The Board notes that a service medical record notes a
clinical history that, during his late teens, the veteran had
been seen by a psychiatrist, intermittently for two years, in
Great Falls, Montana. Post service clinical records note
that the veteran’s parents reported that he had been under
psychiatric care, intermittently since age 14, and weekly by
Dr. Wilder in Great Falls, Montana since the age of 17. In
the instant case, the Board finds that the record is
insufficient to permit effective appellate review to
determine whether there is clear and unmistakable evidence
that the veteran entered service with a preexisting
psychiatric disorder.
Moreover, if the veteran did have a psychiatric disability
which preexisted service, there is a question as to whether
it increased in severity while in service. The record
reveals that the veteran had a “long history (10 years) of
marginal emotional adjustment” after service. Moreover, the
veteran testified at his hearing before a Member of the Board
in April 1996, that he had trouble with his nerves before
service and that his nervous condition was exacerbated while
in the service. Based on any evidence of the disorder
before, during , and after service, the question arises as to
whether it increased in severity beyond the natural
progression during his period of service, which is a medical
determination. Accordingly, the regional office (RO) should
afford the veteran a Department of Veterans Affairs (VA)
examination in order to determine the nature and severity of
his psychiatric disability.
Therefore, the case is REMANDED to the RO for the following
action:
1. The veteran should be requested to
provide the names and addresses of all
health care providers who afforded the
veteran psychiatric treatment prior to
service, including during his teens, from
1953 at the age of 14 years, and 1956 at
the age of 17 by Dr. Wilder in Great
Falls, Montana.
2. After the necessary information and
authorization have been obtained from the
veteran, the RO should obtain copies of
all preservice and post-service
psychiatric treatment records, VA or
private, inpatient or outpatient, which
have not previously been obtained. Any
records obtained should be added to the
claims file.
3. After the above mentioned development
is completed to the extent possible, the
veteran should be afforded a VA
examination by the appropriate
specialist. The examiner should be
requested to review all treatment records
on file, including the preservice and
inservice medical records. Initially,
the examiner should make a determination,
based on the evidence of record, as to
whether a psychiatric disability existed
prior to the veteran’s active service.
If so, the examiner should also offer an
opinion as to whether the evidence
demonstrates that the underlying
pathology of the veteran’s psychiatric
disorder increased in severity during his
period of active service, and if so,
whether any such increase was temporary
or permanent. In addition, if the
examiner determines that a pre-existing
psychiatric disability did undergo a
permanent increase during service, he
should offer an opinion as to whether the
increase in severity of the nervous
disorder was due to the natural
progression of the disorder or was due to
some incident of service. A copy of this
remand and the claims folder must be made
available to the examiner prior to the
examination.
4. The RO should review the examination
report to ensure that it is in complete
compliance with this remand. If not, the
report should be returned to the examiner
for corrective action.
If the benefit sought on appeal continues to be denied, the
veteran and his representative should be furnished a
supplemental statement of the case, and given a reasonable
opportunity to respond. Thereafter, the case should be
returned to the Board for further appellate consideration, as
warranted. No action is required of the veteran until he
receives further notice. By this remand, the Board intimates
no opinion as to the ultimate outcome of this case.
U. R. POWELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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